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DEPARTMENT OF LAW

HUMAN RIGHTS LAW LAW 437

ASSESSMENT 2

NAME: SIMON THATO BATHUSI ID NO: 200903919

INTRODUCTION Human rights are commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being.[1] One need not possess any other qualification to enjoy human rights other than the fact that he or she is a human being.[2] Many states have recognized human rights by encompassing them in Bills of rights of their respective constitutions, and in so doing providing restrictions upon these inalienable fundamental rights. This paper seeks to assess the Bill of Rights of Botswana constitution and the limitations provided thereunder. It will do so by tracing first the origin of human rights in Botswana, then look at specific limitations in the Constitution and restrictions found in other countries. This paper will further usher lessons by way of recommendations if any learned from countries possessing a model for respecting and protecting human rights.

HUMAN RIGHTS AND CONSTITUTION OF BOTSWANA The end of the Second World War marked the increased momentum of the movement to recognize and protect fundamental rights of all human beings.[3] First it was in 1945, where the United Nations Charter was signed, aimed achieving of international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms of all.[4] Then followed the 1948 Universal Declaration of Human Rights. In 1966, in order to give human rights the binding force of international obligations, the ICCPR and ICESCR were adopted. These developments in the international sphere were echoed in several national constitutions, many of which now contain bill of rights.[5] In Botswana, the Constitution as the supreme law of the land embodies the fundamental human rights.[6] Sometimes it is said that the rights are conferred[7] or guaranteed[8] by the constitution. The constitution[9] provides thus every person is entitled to fundamental rights and from that a conclusion can thus be drawn that the wording used suggest that these rights are in no way created by the constitution but rather it stands as evidence of their recognition and the intention that they should be enforceable in courts. Following the aforementioned premise even long before Botswana was a sovereign state, during the colonial era, rights existed among the by then tribes peoples of Bechuanaland[10]. These rights existed solely for the reason that the people were human beings. The gaining of independence of Botswana and promulgation of the Constitution of the Republic, was a move to make a greater the entrenchment of the rights because of the events which clouded the colonial era where there was gross abuse of power, institutionalized inhumanity, human personality disregarded life had been cheapened.[11] All the human violations were only associated with black people yet the contrary was not the same for whites whose human rights were protected and respected.[12] Today it is said that the age of enlightenment is linked to constitutionalism which is associated with the overthrow of arbitrary power and ensuring that governments functioned according to established principles and processes and in the light of enduring values[13]. It [constitutionalism] based itself on proposition that all persons had certain inherent rights that came with their humanity.[14] The Universal Declaration of Human Rights of 1948 subscribed to by the British Government and its colonies by then including Bechuanaland formed part of the of aspirations and desires which the framers of the Constitution of Botswana used in forming the provisions. [15] The constitution of Botswana enshrines that every person is entitled to fundamental rights and freedoms. These rights and freedoms are those concerning life[16], slavery[17], liberty[18], security of the person and the protection of the law[19]; freedom of movement[20]; freedom of conscience[21], of expression[22] and of assembly and association[23]; protection for the privacy of his home and other property[24], protection from deprivation of property [25]and protection from discrimination. [26] These rights and freedom are not couched in an absolute but a restricted manner. FUNDAMENTAL RIGHTS LIMITATIONS

The rights and freedoms guaranteed in the Constitution of Botswana like in many other countries are made subject to several limitations. In that sense reference can be made to the words expressed by FRIEDMAN J where he said; They [fundamental rights] are not fenced in with impregnable palisades and unbreachable walls. [27]A limitation is an exception to the general rule, and in the context of human rights the general rule becomes the protection of rights and freedoms[28]. A limitation of rights is not meant to extinguish rights, but regulate the exercise of the rights.[29]

It is imperative that therefore the limitations be given a strict and narrow, rather than a broad, construction given to fundamental rights and freedoms themselves.[30] Only express and

unambiguous limitations qualify[31] and implied or inferred limitations will fall short of the stringent standards required to curtail fundamental rights.[32] Limitations which have been identified in Botswana Constitution range from public interest rights of others and limitations contained in the provisions.[33] Limitations contained in the provisions range from those reasonably justifiable in a democratic society, those reasonably required, authorized by law, laws before the Constitution, rights of aliens, rights of certain classes of employees, in the interests of public health; morality; safety; order; defence, restrictions at times of emergency or war.

A. THE RIGHTS AND FREEDOMS OF OTHERS AND PUBLIC INTEREST

The constitution allows curtailing of rights for the protection and enjoyment of rights and freedoms of others and public interest. Rights which can be interfered with on these grounds are all rights recognized in the Constitution of Botswana.[34] The restriction for rights of others is couched on the assumption that humans live in a society so the exercise of their rights should not infringe other individuals rights and freedoms so as to enable others to exercise their respective rights.[35] The restriction for public interest is premised on that exercise of rights can be curtailed to in order to allow for realization of the collective goals of a society or the public.[36] The highest court of Botswana in the case of ATTORNEY-GENERAL v OTLHOMILE TEBBUTT JP, held that Section 3[of the Constitution of Botswana] has two aspects. Firstly, it constitutionally guarantees the rights and freedoms set out in ss 4 to 17 of the Constitution; and, secondly it states the justificatory criteria upon which any limitation of those rights and freedoms must be based viz those contained in the provisions such as s 10(12) cited above and limitations reasonably necessary to protect the rights and freedoms of others and the public interest. Having provided that, public interest as a wide concept without a proper definition may vary from case to case, but it may include the peace, and stability of the country, the well-being of the people and national security.[37] It can be observed in the context of protecting human rights in Botswana there is a danger in having such a wide public interest restriction which can curtail all rights yet without specific definition of its application. When limitations are challenged before courts it is where we find that an assessment based on proportionality when limiting the rights is made that courts invoke a value judgment and in ATTORNEY GENERAL'S REFERENCE: IN RE: THE STATE v. MARAPO the court rejected a submission that denial of right to apply for bail in the Penal code at Section 142 which violated the right to liberty could be justified by public interest because basic human rights are nurtured, promoted and protected in all liberal democracies and further that rights are jealously guarded and the development, extension and preservation of them are cornerstones of the intellectual processes of democracies throughout the world and are embodied in laws. TEBBUTT AJP in his judgment held public interest may in some way be served by s 142(1)(i) or if it may represent an expression of concern about the crime situation, sight must not be lost of the fundamental right enshrined in s 3 of the Constitution of personal liberty It is one of the most basic of human rights in a democratic society and its deprivation or curtailment must occur only within the most narrow of confines[38].

B. REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY The standard may be invoked to limit the rights of protecting deprivation of property[39] protection of freedom of conscience[40] protection of freedom of assembly and association[41]. To impose the limitation the first requirement is to have a reasonably justifiable limitation secondly which can sit well in a democratic society. The limitations are assessed by its reasonableness employing a proportionality test, to have a conclusion reached by fairly weighing competing values that the limitation ought to be made.[42] A democratic society is one which has fair and proper treatment of minorities avoiding abuse by the dominant majority aimed at protecting rights

of all [43] and courts[44] in Botswana have been quick to label Botswana as a democratic state. C. THOSE REASONABLY REQUIRED FOR The standard may be invoked to limit the rights of protection of privacy of home and property, protection of right of freedom of conscience; expression. To qualify, the limitation ought to be required. This means that there must be a pressing need or high degree of justification for the interference of the right in question.[45] The limitation has to be direct and closely tailored to the accomplishment of a legitimate objective sought to be archived.[46] In that regard the language used by the Human Rights Committee that limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated to be used.[47]

D. AUTHORIZED BY LAW The constitution allows curtailing of rights by laws. Rights which can be interfered with by law are all rights recognized in the Constitution of Botswana as the laws can find their validity either on the ground of public interest which is a general limitation[48] or that they are provided for in the limiting provision. The word law includes, written law, unwritten, customary common law, case law, and orders or instruction or directives in this sense do not qualify as law.[49] The laws in question also have to pass the Constitutionality test. Where the law restriction does not emanate from public interest it ought to be made specifically for the specified terms inscribed in the provision limiting the right since it is provided that the act done in law or under authority of law has to be made to the extent provided for in the Constitution to leave not even iota that room for inference. It may be mentioned that laws restricting rights of class of persons among them aliens, deceased persons, minors, people of unsound mind, insolvents, convicted persons, person subject to an order of court, public officers, teachers stand as a persons whom rights limitations which are provided for[50]. Also laws required for interest of defence, public safety, public morality or public health are within the limitation provided for by the constitution of Botswana.

E. LAWS BEFORE THE CONSTITUTION Certain laws which existed before the coming into force of the Constitution have been singled out to be in consonance with the Constitution if they present a violation of the fundamental rights and freedoms in the constitution. Infliction of any description of punishment before the coming into force of the Constitution, which were lawful by then are a limitation on the right to protection from inhumane treatment.[51] In Petrus in interpreting section 7 prohibiting torture the Court of Appeal per Aguda JA held my view subsection (1) was designed very clearly to prohibit absolutely torture, inhuman, degrading and other treatment. Subsection (2) was only added to prevent a complete break from the position of punishment as it existed by 29 September 1966, based upon the common knowledge of the people at the time. It was not meant, for example, to resuscitate torture even if it had existed somewhere or the other within the areas of the land which at the present constitute the State of Botswana. [52] Also laws in force which were discriminatory before the Constitution are a limitation on the right to freedom from discrimination.[53] It certainly does not fly on the face of one who may in astonishment ask whether retaining outdated right limiting laws long before the Constitution should continue to be consistent with the assentation loved by Judges[54] in Botswana when interpreting the Bill of rights of Botswana that Botswana is a civilized liberal democracy, and it cannot be overstated that the Judges in Botswana are in utter difficulty the constitution which is incredible for the rights it limits not those it gives. F. IN THE INTERESTS OF PUBLIC HEALTH; ORDER; SAFETY; DEFENCE; MORALITY The Constitution of Botswana allows limitation of rights for the interest of public health; order;

safety; defence and morality. These interests can be used limit right to deprivation of property, privacy of home and other property, freedom of conscience; expression, movement, freedom of assembly and association.[55] The limitations have to be in the interest of the grounds aforelisted in the preceding sentence. A limitation is in the interest of if the connection between the restriction and interest sought to be archived is direct and proximate.[56] It was acknowledged by the Committee on Economic, Social and Cultural Rights that public health is sometimes used by States as grounds for limiting the exercise of fundamental rights and provides that the restriction must be in accordance with the law, in the interest of legitimate aims pursued, and strictly necessary for the promotion of the general welfare in a democratic society.[57] Public safety means securing the public from danger[58]. Public order means preventing disorder or lawlessness where there is peace, tranquility and absence of violence and public disorder[59]. Public morals are those morals ascribed to by the people of Botswana.[60] It is worthy of note that since the constitution does not provide any guide as to what would amount to public order, safety, health, morality and defence, it will be left open to judges to breathe life into the constitution. Owing to the unfortunate structure of the Constitution consequentially rights which can be curtailed in this context will be subjected to uncertainty particularly because of the situation that there is an inconsistent set of judges in Botswana with regard to promoting and protecting human rights.[61]

G. RIGHTS RESTRICTIONS DURING TIMES OF EMERGENCIES

The constitution of Botswana warrants derogation of rights when national emergency declared by the President or at times of war.[62] Discretion to the government to restrict rights is contained at Section 16. [63] The discretion however has to be within that the only rights which may be restricted are that of liberty[64] and discrimination[65]. The enacted laws or restrictions must be reasonably justifiable to deal with the situation of war or an emergency at the period, and if that is not the case any limitation will unconstitutional and unlawful. The other qualification is that if restriction emanates from a declared public emergency, such declaration by the president must be in accordance with the Constitution that it ought to be published in the government Gazette.[66]

COMPARATIVE ANALISIS

It is imperative to contend that Zimbabwe holds an ideal model for human rights focused constitution and in the final draft of the constitution which is to be effected, there is a separate section dealing with limitation of rights and freedoms contained in the Constitution which all limitations are subject to. It is provided that the fundamental rights and freedoms may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.[67] Further it provides that certain rights are not to be limited by law and those are the right to human dignity; the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment; the right not to be placed in slavery or servitude; the right to a fair trial; the right to obtain an order of habeas corpus.[68] The Draft Constitution also provides that limitations during public emergency must not be greater than is strictly required by the emergency or limit any of the rights referred to in section 86(3).[69] The Zimbabwe draft can be said to be in line with the point that rights must be fundamental than restrictions as indicated by the strict constitutional guarantees which limit the limitations. The Zimbabwe model must have followed the 2010 Constitution of Kenya which also not only

has a specific section dealing with limitations of fundamental rights also rights not to be limited and in that light (a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; c) the right to a fair trial; and d) the right to an order of habeas corpus.[70] The Kenya Constitution provides that rights or fundamental freedom are only to be limited only by law, and the limitations must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The standard is set high in Kenya where one seeks to limit a right in the sense that it has to go through the dignity, equality, reasonableness test in a democratic society.[71] The constitution further provides that the limitations have to be clear and specific about the right or freedom to be limited and the nature and extent of the limitation. It is enshrined in the Kenya Constitution that a limitation will only be valid if it does not derogate from the core or essential content of the right.[72] It call for mention that there is a striking similarity, upon critically reading the Bill of Rights of Botswana Constitution and the 1963 Constitution of Kenya[73], which just like Botswana Constitution had limited every right by claw back clauses, had no specific section dealing with limitations. Sarcastically one may conclude that so far as protection and proper recognition of fundamental human rights is concerned, Botswana is 50 years[74] behind Kenya which is at an advanced stage because of its 2010 Constitution.

The South African Constitution, like Draft of Zimbabwe, also has a section dealing specifically with limitations and which has to be used whenever a limitation of a right is to be invoked.[75] The section has been influenced and formulated in 1996 by the Constitutional Court in the Makwanyane judgment [76] cited with approval by the Court of Appeal of Botswana[77] , as it decision was made when the Constitutional Assembly was working on the final text of the Bill of Rights, and the decision presented the process with a helpful, well-conceived formulation.[78] The Constitution thus provides that the limitation must reasonable and justifiable in an open and democratic society and further that they must be based on human dignity, equality and freedom, which take into account among other factors the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.[79] The South African Constitution provides that there may be limitations by legislation on the Bill of Rights during public emergency and such limitation must be strictly required by emergency or be consistent with South Africas obligations under international law applicable to states of emergency limit any of the rights referred to in section 86(3).[80] The Constitution further provides that rights of human dignity and life must not be limited even under emergency.[81] However South Africa unlike Kenya and the Draft Constitution of Zimbabwe does not have a general section providing for rights which may not be limited. That still being the case a salient point to make in comment of the Constitutions of South Africa, Kenya and Zimbabwe, is that the general limitations clauses are essential for a balancing approach to adjudication of rights which must not premised on robust boundaries between rights and collective interests and they also guide judges to critically articulate substantive reasons for their decisions, rather than simply declare the case to fall within a particular category of limitation.[82] It is also imperative to acknowledge that the models provided by Zimbabwe, Kenya and South Africa presents what Botswana ought to adopt in its pursuit of promoting, protecting fundamental rights, as it clearly appears that in Botswana unlike the ideal objective, it is a case to say that it is the limitations that have been in reality elevated to the status of the fundamental rights themselves, that it can be argued that they are more fundamental than the rights because of the wide limitations. It is wise to adopt the words of LORD COULSFIELD JA in his minority judgment in Good v The AttorneyGeneral where he said ; It follows that reliance on the domestic law alone may be inadequate to protect inhabitants of a territory against arbitrary action by state authorities, since the domestic law itself may be arbitrary [83]

CONCLUSION No fair and right thinking person would escape the conclusion, that there is much that still needs to be done for the protecting of fundamental rights and freedoms owing poorly constructed Bill of rights of Botswana which was inherited as was from the colonizers where of all constitutional amendments none has never be made to the Bill of Rights.[84] Furthermore, although judges[85] in Botswana have been at their best in pursuit of promoting fundamental rights no one can blame them where they were constrained by a stagnant and dead Constitution supposedly representing the aspirations of every Botswana citizen. As much as it can be submitted that Botswana unlike most African states has witnessed stability and peace in terms of civil wars sparked by citizens in pursuit and calling for observance and protection of their constitutional rights, that is nothing to be proud of because it is perceived by intellectuals[86] and common sense, as clear evidence of an ignorant nation which is still under a neo-colonial rule, filled with rulers whose worst nightmare will be an awakened citizenry properly having and knowing their rights. It being common that no one would enjoy witness civil wars, we certainly want to see a informed citizenry which knows its rights and which has fairly restricted rights and that demands that a constitutional amendment is imperative, in order to align Botswana Constitution with progressive protection and realization of human rights a step ideal for a progressive and democracy loving country.

ENDNOTES

[1] Sepulveda M, Banning T, Human Rights Reference Handbook, 2004, University For Peace [2] (2004) 4 African Human Rights Law Journal [3] Ex Parte Chairperson Of The Constitutional Assembly: In Re Certification Of The Constitution Of The Republic Of South Africa, 1996 1996 (4) Sa 744 (Cc)Per The Court [4] United Nations Charter [5] Above No 3 [6] Sesana And Others V The Attorney-General 2006 (2) BLR 633 (HC) per Phumaphi J Pg 150 [7] Attorney-General V. Dow 1992 BLR119 (CA) [8] Sesana and Others V The Attorney-General 2006 (2) BLR 633 (HC) [9] Section 3 of the Constitution of Botswana [10] Shapera A Handbook of Setswana Law and Custom (2nd ed.) 1955, [11] Lemelle S, Pan Africanisim: For Beginners,(Writers And Readers Publishing, London, 1992) , see also Ngugi Wa Thiongo, Devil On The Cross See also Frantz Fanon, The Wretched Of The Earth, (Penguin Books, London, 1963) [12] See above [13] S v Makwanyane And Another 1995 (3) Sa 391 (Cc) [14] As above

[15] Attorney-General v. Dow 1992 BLR 119 (CA) per Amissah P, [16] Section 4 of Constitution of Botswana [17] As above at section 6 [18]As above at section 5 [19] As above at section 10 [20]As above at section 14 [21]As above at section 11 [22]As above at section 12 [23] As above at section 13 [24] As above at section 9 [25]As above at section 8 [26] As above at section 15 of the Constitution Of Botswana [27] Nyamakazi v President Of Bophuthatswana 1992 (4) SA 540 (BG) A, pg 563 [28]Jayawickrama N, The Judicial Application Of Human Rights Law; National, Regional And International Jurisprudence (Cambridge University Press, UK, 2006) [29]As above [30]Per Amissah P,Makuto v. The State 2000 (2) BLR 130 (CA) SEE ALSO Petrus And Another v. THE STATE 1984 BLR 14 (CA) per AGUDA JA p 37 SEE ALSO Quansah EK, Fombad Cm, Judicial Activism In Africa: Possible Defence Against Authoritarian Resurgence? [31] Attorney-General v. Moagi 1982 (2) B.L.R. 124 at p 184, Kentridge JA SEE ALSO Ahmed v. The Attorney-General 2002 (2) BLR 431 (HC) Per Collins J [32]Per Tebbutt Jp pg 29 in Attorney-General v Otlhomile 2004 (1) BLR 21 (CA) [33]Section 4-15 Of The Constitution [34] Section 3 Of the Constitution SEE ALSO ATTORNEY-GENERAL v OTLHOMILE 2004 (1) BLR 21 (CA) TEBBUTT JP [35] Jayawickrama N, The Judicial Application Of Human Rights Law; National, Regional And International Jurisprudence (Cambridge University Press, Uk, 2006) see also Section 9 sub 2 b ,section 11 sub 5 (b) , section 12 sub 2 b , section 13 sub 2 b of the Constitution of Botswana [36] Per Tebbutt Jp In Attorney-General v Otlhomile 2004 (1) BLR 21 (CA) [37] Good v The Attorney-General 2005 (2) BLR 337 (CA) see further Kanane v The State where the Court of Appeal had to use public interest to justify limiting discrimination on basis of gender regarding homosexuality practices between men and women as the public interest required that it was not yet time to condone homosexuality practices [38] ATTORNEY GENERAL'S REFERENCE: IN RE: THE STATE v. MARAPO 2002 (2) BLR 26 (CA) at p33

39 Section 40 Section 41 Section

8 Sub 5 (A) 11 Sub 5 13 Sub 2 in Attorney-General v Otlhomile 2004 (1) BLR 21 (CA)

42 Per Tebbutt Jp 43 Speiser v

Randall United States Supreme Court, 357 US 513 1958

[44] Attorney-General v Dow, GOOD v THE ATTORNEY-GENERAL 2005 (2) BLR 333 (CA), SELEKA RESIDENTS v. THE ATTORNEY-GENERAL 1995 BLR 372 (HC)
44 See 45 See

No 29 Above

[47] General comment No. 22: Article 18 (Freedom of thought, conscience or religion) para 8
46 Section

3 See Also No 38 Investments (Pty) Ltd v Ministry Of Education 2008 (1) Blr 270 (CA)

47 Vancouver Consolidated

Per Ramodibedi JA [50] See section 5,8,12,13,14, of the Constitution of Botswana [51] Section 7 sub 2 of the Constitution of Botswana [52] Petrus And Another v. THE STATE 1984 BLR 14 (CA) [53] Section 15 sub 9 of the Constitution of Botswana [54] See Ammissah P in Dow case at pg I am in agreement that Botswana is a member of the community of civilized States which has undertaken to abide by certain standards of conduct SEE ALSO per Tebbut in Good case at pg 346 [55] See section 8 (1), 9 (2) , 11 (5), 12 (2), 13 (2)and 14 (3) [56] Jayawickrama N, The Judicial Application Of Human Rights Law; National, Regional And International Jurisprudence (Cambridge University Press, UK, 2006) [57] General comment No. 14 The right to the highest attainable standard of health SEE ALSO section 5 sub 1 sub h and further section 8 sub 5 (a) (v) of the Constitution of Botswana [58] See section 5 sub 1 sub h of the Constitution of Botswana [59] See Good v The Attorney-General [60] See Kanane v State [2003] SEE FURTHER State v. Galekuelwe 1996 BLR 373 (HC) where the High Court held that crimes such as incest fall within the purview of public morality [61] Contrasting Judgments of, Sesana case(Dow dissenting), Good Case(minority judgment), Kanane case , Mmusi v Ramantele MAHLB-000836-10 case SEE FURTHER Quansah EK, Fombad CM, Judicial Activism In Africa: Possible Defence Against Authoritarian Resurgence? where it was said An early study on judicial activism in the country[Botswana] has provided evidence to suggest that the countrys contract system of judicial appointments has not helped because the contracts of some of the judges who displayed strong traits of judicial and

constitutional activism were not renewed. [And as reference the following was cited B Otlhogile, A History of the Higher Courts of Botswana 1912 1990, Gaborone, Mmegi Publishing House, pp 92-92 (1994) and AJGM Sanders, Constitutionalism in Botswana, op. cit.] [62] Section 16 of the Constitution of Botswana read with section 17 [63] Fombad C, Botswana; Introductory Notes, University of Pretoria, South Africa [64] Section 5 of the Constitution of Botswana [65] Section 15 [66] Section 17 sub 1 [67] Section 86 of the 1 FEBRUARY 2013 Final Draft of Zimbabwe Constitution [68] See above Subsection 3 [69] See above [70] Section 25 of the 2010 Constitution of Kenya SEE ALSO section 38 of the Constitution of Zwaziland which prohibits limitations on right to life; equality before the law and security of person torture, cruel inhuman or degrading treatment or Punishment, fair hearing, freedom slavery or servitude. [71] See section 24 (1) of the 2010 Kenyan Constitution [72] See above at sub section (2) SEE ALSO Article 53 sub 1 of The Spanish Constitution which provides that the rights and liberties recognized may be regulated only by law which shall, in any case, respect their essential content. [73] Section 14 27 of the 1963 Constitution Of Kenya [74] (2013[the current Botswana unamended constitution] minus 1963) [75] Section 37 of the Constitution of the Republic of South Africa [76] S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 104 per Chaskalson P The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing-up of competing values, and ultimately an assessment based on proportionality.... [77] ATTORNEY-GENERAL v OTLHOMILE 2004 (1) BLR 21 (CA) TEBBUTT JP, p29 [78] Prof. Venter F, South Africa; Introductory Notes, North-West University, Potchefstroom Campus, South Africa [79] Section 36 sub 1 [80] See above [81] See section 37 table of Non derogable rights [82] Norbert Kersting (Ed.),Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe, Friedrich-Ebert-Stiftung, Zimbabwe, 2009: Sandra Liebenberg, Reflections on drafting a Bill of Rights: A South African Perspective at pg 41 [83] Pg 363

[84] Fombad C, Botswana; Introductory Notes, University of Pretoria, South Africa [85] Inter alia Dow in Sesana case, Aguda JA in Petrus case [86] See Quansah EK, Fombad CM, Judicial Activism In Africa: Possible Defence Against Authoritarian Resurgence?

MATERIALS USED Table Of Cases Ahmed v. The Attorney-General 2002 (2) BLR 431 Attorney-General v. Dow 1992 BLR 119 (CA) Attorney-General v. Moagi 1982 (2) B.L.R. 124 Attorney-General v Otlhomile 2004 (1) BLR 21 (CA) Attorney General's Reference: In Re: The State v. MARAPO 2002 (2) BLR 26 (CA) Good v The Attorney-General 2005 (2) BLR 337 (CA Kanane v State [2003] 2 BLR 67 (CA) Makuto v. The State 2000 (2) BLR 130 (CA) P135 Mmusi v Ramantele MAHLB-000836-10 Vancouver Consolidated Investments (Pty) Ltd v Ministry Of Education 2008 (1) BLR 270 (CA) Petrus And Another v. THE STATE 1984 BLR 14 (CA) Sesana And Others v The Attorney-General 2006 (2) BLR 633 (HC) SELEKA RESIDENTS v. THE ATTORNEY-GENERAL 1995 BLR 372 (HC) STATE v. GALEKUELWE 1996 BLR 373 (HC)

FOREIGN CASES Ex Parte Chairperson Of The Constitutional Assembly: In Re Certification Of The Constitution Of The Republic Of South Africa, 1996 1996 (4) Sa 744 (Cc) Nyamakazi v President Of Bophuthatswana 1992 (4) SA540 (BG) Speiser v Randall United States Supreme Court, 357 US 513 1958 S v Makwanyane And Another 1995 (3) SA 391 (Cc) CONSTITUTIONS The Constitution Of Botswana Final Draft of Zimbabwe Constitution of 1 FEBRUARY 2013 Constitution of Swaziland 1963 Constitution Of Kenya 2010 Constitution Of Kenya CONSTITUTION of SPAIN Constitution of the Republic of South Africa Table Of International Statutes, Treaties And Conventions International Covenant on Civil and Political Rights Universal Declaration of Human Rights United Nations Charter The Committee on Economic, Social and Cultural Rights; General comment No. 14 Human Rights Committee: General comment No. 22: Article 18 (Freedom of thought, conscience or religion) Bibliography: Articles (2004) 4 African Human Rights Law Journal Fombad C, Botswana; Introductory Notes, University of Pretoria, South Africa Sepulveda M, Banning T, Human Rights Reference Handbook, 2004, University For Peace Jayawickrama N, The Judicial Application Of Human Rights Law; National, Regional And International Jurisprudence (Cambridge University Press, Uk, 2006)

Quansah Ek, Fombad CM, Judicial Activism In Africa: Possible Defence Against Authoritarian Resurgence?

Jayawickrama N, The Judicial Application Of Human Rights Law; National, Regional And International Jurisprudence (Cambridge University Press, UK, 2006) Norbert Kersting (Ed.),Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe, Friedrich-Ebert-Stiftung, Zimbabwe, 2009: Sandra Liebenberg, Reflections on drafting a Bill of Rights: A South African Perspective Prof. Venter F, South Africa; Introductory Notes, North-West University, Potchefstroom Campus, South Africa Books Lemelle S, Pan Africanisim: For Beginners,(Writers And Readers Publishing, London, 1992) , Ngugi Wa Thiongo, Devil On The Cross Frantz Fanon, The Wretched Of The Earth, (Penguin Books, London, 1963) Shapera A Handbook of Setswana Law and Custom (2nd ed.) 1955,